8 February 2023
Today, February 8, the First Senate of the Constitutional Court of Ukraine at the public part of plenary session in the form of written proceedings considered the case upon the constitutional complaint of Andrii Franko on the constitutionality of the provisions of paragraph two of Article 483.1 of the Customs Code of Ukraine (hereinafter – the Code).
During the plenary session, the Judge-Rapporteur in the case Viktor Kryvenko reported on the content of the constitutional complaint, the progress of the case in the courts and the complainant’s arguments.
The Judge-Rapporteur informed that the subject of the right to constitutional complaint appealed to the Constitutional Court of Ukraine with a request to verify the compliance of the provisions of the second paragraph of Article 483.1 of the Code to Articles 41.1, 41.4, and 61.2 of the Constitution of Ukraine.
In accordance with Article 483.1 of the Code, movements or actions aimed at moving goods across the customs border of Ukraine with concealment from customs control, i.e. using specially made warehouses (hideouts) and other means or methods that make it difficult to detect such goods, or by providing one goods of the appearance of others, or with submission to the customs authority as a basis for the movement of goods of forged documents or documents obtained illegally, or those containing false information about the name of the goods, their weight (taking into account permissible losses under proper conditions of storage and transportation) or quantity, the country of origin, the sender and/or the recipient, the number of cargo spaces, their markings and numbers, false information necessary to determine the product code according to the Ukrainian classifier of goods of foreign economic activity and its customs value – entail the imposition of a fine in the amount of 100 percent of the value of the goods – direct objects of violation of customs rules on confiscation of these goods, as well as goods, vehicles with specially made storage facilities (caches), which were used for the movement of goods – direct objects of violation of customs rules across the customs border of Ukraine.
The applicant believes that the sanction of Article 483.1 of the Code does not correspond to the Constitution of Ukraine, as it does not provide any alternative. At the same time, the absence of other types of basic penalties in the impugned provisions of the Code and the impossibility of changing the amount of interest, by which the fine is determined, does not allow the individualisation of legal responsibility taking into account the nature of the committed illegal act, the form of guilt, the characteristics of the person, the possibility of compensation for the damage caused, the presence of circumstances that improve or aggravate the punishment.
According to the complainant, the application of the impugned provisions of the Code without individualising the amount of the fine leads to interference with the right of ownership guaranteed by the Basic Law of Ukraine.
The Judge-Rapporteur also noted that the Court sent letters to state authorities, a number of higher education and academic institutions with a request to express positions on the issues raised in the constitutional complaint.
Having concluded consideration of the case at the public part of plenary session, the First Senate of the Constitutional Court of Ukraine proceeded to the in-camera part for a decision.
The Permanent Representative of the Verkhovna Rada of Ukraine in the Constitutional Court, Maksym Dyrdin, attended the plenary session of the Court.
The public part of the plenary session is available at link: “Archive of video broadcasts of the sessions”.
